ARTHUR AND OTHERS vs. THE REPUBLIC [1985]DLCA707

Date	1985-12-11
Suit No.
Citation No.	[1985]DLCA707

SOWAH AG. C.J.

ABBAN J.A

AMUA-SEKYI J.

J. SPIO FOR THE APPELLANTS.

S. G. BADDOO CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1985]DLCA707
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													<main id="main" class="content" style="min-height: 60rem" >ARTHUR AND OTHERS <o:p></o:p>vs.<o:p></o:p>&nbsp;THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1GLR 739<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
11TH DECEMBER 1985<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. SPIO FOR THE APPELLANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SOWAH AG. C.J. ABBAN J.A. AND
AMUA-SEKYI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>The first
and third appellants were charged with conspiracy to murder and murder of one
Kwasi Itu at a village called Daber near Elmina on or about 14 May 1981. The
second appellant was charged with conspiracy to murder and abetment of the said
murder. They were tried at the criminal session held at the High Court, Cape
Coast. All of them were found guilty and convicted. The first and third
appellants were sentenced to death while the second appellant was given a
prison sentence of twelve years with hard labour.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case are that the deceased, an old man of about 75 years, was found dead
in his room on the morning of 14 May 1981 at Daber village. One Madam Ode who
was living in the house was the first person to find the deceased dead. Members
of the family of the deceased assembled and the third appellant, being one of
the elders of that family and also the family linguist, was entrusted with the responsibility
for the burial arrangements which included the preparation of the dead body for
burial.<o:p></o:p><o:p>&nbsp;</o:p>Since
there were no facilities for embalment, the third appellant had the body
washed, cleaned and made it ready for burial. The deceased at the time of his
death was the head of the royal family of the village and since there was no
chief at that time, he was also the acting chief of the village. As a chief,
custom demanded that burial should take place in the night. The family of the
children of the deceased provided a coffin in accordance with custom. When the
family realised that the body had began giving a bad smell a decision was taken
to bury it that night and this was accordingly done.<o:p></o:p><o:p>&nbsp;</o:p>The
deceased had in his custody the stool paraphernalia. These things had been
packed into a box and kept in the room of the deceased. A day or two after the
burial, members of the family re-assembled to take stock of the said
paraphernalia. At the gathering some members of the family were deputed to go
to the room where the stool and the paraphernalia were kept and to take
inventory. The delegation returned to report that they found the room very
disorderly and that the stool and some of the paraphernalia were missing. The
first reaction of some members of the family was to make contributions of ten
cedis per member to be used in consulting a fetish as to who were responsible
for the theft.<o:p></o:p><o:p>&nbsp;</o:p>It is not
clear from the evidence as to whether the fetish was able to find the culprit.
In any case, before anything could be heard from the fetish, one Adwowa Anima,
the fifth prosecution witness; the third appellant; and his brother Kwame we
had reported the theft to the police at Elmina. But the third appellant and his
brother were placed in custody. Later some of the stool jewels were discovered
with Kweku Efum, the seventh prosecution witness, and he was also arrested and
placed in the cells. Kweku Efum later turned out to be the star witness for the
prosecution.<o:p></o:p><o:p>&nbsp;</o:p>After
further investigations some of the missing articles were found with the first
and second appellants and they were also arrested. Then rumours started
circulating that the deceased might not have died a natural death. This led to
the exhumation of the body for post-mortem examination and also to the arrest
by the police of other persons including Kwamina Nyarko, the fourth prosecution
witness, and Nyame-Na Ose, the ninth prosecution witness. Thus from the
beginning the suspects in connection with the death of the deceased were the
appellants, Kwamina Nyarko, the fourth prosecution witness, Kweku Efum, the
seventh prosecution witness, Nyame-Na Ose, the ninth prosecution witness, and
Kwame Wi.<o:p></o:p><o:p>&nbsp;</o:p>